Project Blue Sky: invalidity and the evolution of consequences for

unlawful administrative action

Speech delivered to the Australian Institute of Administrative Law on 20 November 2012

Section I

I recently encountered Justice Beazley in an elevator in the Law Courts Building and
she, sensing me to be vulnerable, asked me whether I would not agree to give a
speech this evening on this rather daunting topic. Foolishly, I agreed. The shared
Supreme and Federal Court judges lifts are one of those rare examples of co-
operative federalism in action; this speech is therefore to be seen as one of the
bounties of federalism. I hope it will not be as dubious as some of the other bounties.

There are two aspects of the topic which I want to underscore at the outset and these
are its references to invalidity and to unlawfulness. These concepts have, as I will
hope to show you, an uneasy relationship. We now know that not all unlawful
administrative action is invalid even if we probably feel that all invalid action is
unlawful. Can I sketch at the outset an inherent incoherence in that statement: if an
administrative act is truly invalid it cannot be unlawful according to current theory it
simply does not exist.1 The state of being unlawful that is, that the decision is
contrary to law is a legal conclusion about an event which is taken to exist. There
can be, if one thinks about it clearly, no such thing as unlawful invalid action for a
truly invalid act does not sufficiently exist to contravene any rule of law.

To give an example, on the present learning of the High Court (the judges of which
may also, from time to time, be found in the same Law Courts elevators), a decision
made in breach of the rules of procedural fairness is no decision at all. 2 It does not
contravene its authorising statute it has simply never happened. On the other hand,
where a decision maker commits that rare creature the non-jurisdictional error of
1 Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 at 614-615 [51]
per Gaudron and Gummow JJ; Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 at 506 [76]
per Gaudron, McHugh, Gummow, Kirby and Hayne JJ.
2 Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 at 508 [83] per Gaudron, McHugh,
Gummow, Kirby and Hayne JJ
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law questions of unlawfulness do arise but they generally have no consequences. If
the decision is not invalid, and leaving to one side for now the difficulty for the
prevailing theory constituted by the fact that certiorari may be granted for non-
jurisdictional error of law patent of the face of the record, a court has no jurisdiction
to set it aside even if it is otherwise unlawful.3 Under the current vision, therefore, the
lawfulness of administrative action is a redundant inquiry it either does not matter
because the decision is invalid and cannot be unlawful because it does not exist or the
decision is valid in which cases its lawfulness is irrelevant to any power the Court has.

What I want to propose this evening is that this is an incoherent theory, unsupported
historically, and an inaccurate description of what in fact courts are presently doing
and have always done. Instead, what I want to suggest is that administrative law
should be focussed on whether administrative action is lawful and, if it be concluded
that it is not, that the courts should decide what the consequences of that unlawfulness
are to be. We should abandon the fiction of which Project Blue Sky Inc v Australian
Broadcasting Authority4 is the exemplar that the Parliament has told the courts what
to do when unlawful administrative action is discovered when it quite clearly has
not and instead develop a jurisprudence directed to explaining why some unlawful
action should be set aside whilst other unlawful action should be left in place. As an
essential step in that process we ought to free ourselves from the notion that
administrative action is ever invalid and dispense with its handmaiden, the concept of
jurisdictional error, which gives rise to many more problems than it solves.

This is not to say that the baby should be thrown out with the bath water. Many of the
statements which appear in cases concerned with ascertaining whether a decision is
invalid provide useful insights into whether an unlawful decision is one that ought to
be set aside. The critical difference is that the issue ought not to be approached on the
fictional basis that the statute provides in every case a definitive yes or no answer to
the question of what should happen if its provisions be contravened. The insistence
that the statute does provide that answer leads one into the realm of invalid action and,
as I will endeavour to show, only incoherence lies in that direction.

3 Craig v South Australia (1995) 184 CLR 163

4 (1998) 194 CLR 355.
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I might begin then with a quick statement of the present rule. The critical passage
appears in the joint judgment of McHugh, Gummow, Kirby and Hayne JJ in Project
Blue Sky. Having first explained that the former distinction between mandatory and
directive provisions in a statute obscures the real question their Honours went on to
observe that:5

A better test for determining the issue of validity is to ask whether it

was a purpose of the legislation that an act done in breach of the
provision should be invalid. This has been the preferred approach of
courts in this country in recent years, particularly in New South Wales.
In determining the question of purpose, regard must be had to "the
language of the relevant provision and the scope and object of the
whole statute.

(References omitted.)

This approach is premised on the notion of validity. The actual inquiry the joint
judgment suggested that is, consider the language of the statute and its scope and
object are I think perfectly acceptable inputs into whether a decision ought to be set
aside. But seen through the prism of validity they exclude any consideration of
whether other matters might bear upon the decision of whether to set aside a decision.
These might include, for example, how serious the breach in question is or what the
consequences for others might be. As I will later suggest, this infelicity in the
doctrine has been papered over by an insistence that relief may be refused on
discretionary grounds but this leaves one with the vista of an apparently effective
albeit invalid decision. How a decision may be both invalid and effective is one
which is not easy to understand.

That statement nevertheless is the orthodox and entrenched position. It was applied by
the High Court in Commissioner of Taxation v Futuris Corporation Limited 6 to
conclude that errors in the process of producing a notice of assessment did not go to
jurisdiction when the notice fell within the protection of the privative clause in s 175
of the Income Tax Assessment Act 1936 (Cth). There are many instances of its

5 Ibid at 390 [93]

6 (2008) 237 CLR 146 at 156 [23].
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application at an intermediate appellate level: see, for example, the New South Wales
Court of Appeals decision in Chase Oyster Bar Pty Ltd v Hamo Industries Pty Ltd 7
and the recent Full Federal Courts decision in Australian Industry Group v Fair Work
Australia.8

The principle has come to be applied in two broad ways. The first concerns what can
be directly ascertained from the text of the statute. This involves a close construction
of the words actually used or the structure of the legislation. An example is afforded
by those cases where it is said that the authority of a repository of a power cannot be
exercised in conflict with a provision which governs the manner of its exercise. In
such cases, as Brennan CJ observed in Project Blue Sky,9 [a] purported exercise of a
power in breach of the provision which governs the manner of its exercise is invalid,
since there is no power to support it. An example of such a provision might be s
459G(2) of the Corporations Act 2001 which provides that an application to set aside
a statutory demand may only be made within 21 days after the demand is so served.
In David Grant & Co Pty Ltd v Westpac Banking Corporation Gummow J observed
that the phrase [a]n application may only be made within 21 days should be read as
a whole. The force of the term may only is to define the jurisdiction of the court by
imposing a requirement as to time as an essential condition of the new right conferred
by s 459G. An integer or element of the right created by s 459G is its exercise by
application made within the time specified.10

One might observe that what is being hinted at here is a notion that the requirement is
mandatory (the very question said in Project Blue Sky to be the wrong question).
Indeed, in Chase Oyster Bar, Spigelman CJ said in the course of explaining the
principle that [t]he first textual indicator that is always of significance is the mode of
expression of the element directly in issue. Substantial, indeed often, but not always,
determinative, weight must be given to language which is in mandatory form. 11 One
may ask what is so very different about asking whether the provision breached is

7 (2010) 78 NSLWR 393

8 [2012] FCAFC 108 at [46]-[48]
9 (1998) 194 CLR 355 at 373 [34]
10 (1995) 184 CLR 265 at 277.
11 (2010) 78 NSLWR 393 at [40].
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mandatory in effect (a forbidden question) as opposed to mandatory in form
(apparently permissible).

Another factor which is important is the structure of the legislation. David Grant
again affords a useful illustration. There Gummow J applied 12 the well-known
statement in Anthony Hordern & Sons Ltd v Amalgamated Clothing and Allied Trades
Unions of Australia13 to conclude that the specific words of s 459G(2) were not to be
outflanked by the more general language of s 1322(4)(d).

Separate from these textual tools is a second set of principles which cannot be found
in the words of any statute. These are fundamental rights which apply unless the
Parliament indicates that they do not. They presently travel collectively under the title
the principle of legality, an expression used by Lord Steyn in R v Home Secretary;
ex parte Pierson14. In Electrolux Home Products v Australian Workers Union, Gleeson
CJ explained that the presumption that fundamental rights would not be affected
without clear statutory language was:15

an aspect of the principle of legality which governs the relations

between Parliament, the executive and the courts. The presumption is
not merely a common sense guide to what a Parliament in a liberal
democracy is likely to have intended; it is a working hypothesis, the
existence of which is known both to Parliament and the courts, upon
which statutory language will be interpreted. The hypothesis is an
aspect of the rule of law.

What are these rights? Professor Pearce and Associate Professor Geddes have
conveniently located a long list of them at [5.36] of the 7 th Edition of Statutory
Interpretation in Australia.16 For present purposes it suffices to observe that the list
includes denying procedural fairness. Although not on the list, it would also include,
in light of Craig v South Australia,17 taking into account irrelevant considerations,

12 (1995) 184 CLR 265 at 275-276

13 (1932) 47 CLR 1 at 7.
14 [1998] AC 539 at 587, 589
15 (2004) 221 CLR 309
16 (LexisNexis Butterworths, 2011).
17 (1995) 184 CLR 163.
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failing to take into account relevant considerations or arriving at a decision which was
so unreasonable that no reasonable decision maker could possibly arrive at it.

The statement in Electrolux is apt to suggest that what is taking place when
fundamental rights are concerned is a dialogue between the branches of government
in which the final result respect for fundamental rights is to be seen as the
consequence of a shared understanding, particularly between the Courts and
Parliament, as to what Parliament does (or more accurately does not) intend by its
silence.

There is a palpable ambiguity in this principle as to the source of the rights. Earlier
authority of the High Court would have suggested that the source of the rights was the
common law and that legislation was simply to be read as not intruding on rules of
law established by the Courts. This is most likely the position the Court took in Coco
v The Queen, where Mason CJ, Brennan, Gaudron and McHugh JJ said:18

The courts should not impute to the legislature an intention to interfere

with fundamental rights. Such an intention must be clearly manifested
by unmistakable and unambiguous language. General words will
rarely be sufficient for that purpose if they do not specifically deal
with the question because, in the context in which they appear, they
will often be ambiguous on the aspect of interference with fundamental
rights.

Reading this one might have thought that the fundamental rights in question are legal
principles which have been generated by the common law. The statement in
Electrolux is much more complex. The rights do not emerge because the Courts have
recognised those rights and because legislation is to be interpreted so as not to
interfere with them. Rather, they emerge instead as the result of a shared assumption
between the branches of government. More recently, the shared assumption in
Electrolux has been accepted to be nothing more than rules of interpretation accepted
by all arms of government. These were the words used by five Justices in Zheng v
Cai.19 That view of affairs leads one inevitably to see the grounds of judicial review
as elements, not of rules of common law generated from within the judiciary, but

18 (1994) 179 CLR 427 at 437

19 (2009) 239 CLR 446 at 456 [28]
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instead as rules of legislation prescribed by Parliament. And indeed so much has now
been expressly accepted in the case of the rules of procedural fairness. In Saeed v
Minister for Immigration and Citizenship the Court said, for example, that [t]he
implication of the principles of natural justice in a statute is therefore arrived at by a
process of construction.20

That conclusion was inevitably required by the Courts earlier acceptance that each of
the traditional grounds of review gave rise to jurisdictional error under s 75(v) of the
Constitution.21 Once unmasked as examples of jurisdictional error the process of
reasoning in the passage quoted above from Project Blue Sky became necessary and
this, in turn, inevitably made the inquiry one about the interpretation of legislation.
After Project Blue Sky, it was not possible to conceive of jurisdictional errors arising
outside of a legislative framework. The statement in Saeed is, in that sense, merely
the logical working through of what had already been held in Aala22 and Project Blue
Sky itself.

I am going to return to criticise this approach a little later. But I might just point out
some of its curious features at this stage. The first is that it is a view which locates all
legal authority in the Parliament. The Courts may be free to create common law rules
away from the domain of public law but in that area it is now accepted that the only
source of rules of law are Parliamentary ones. This view, of course, is the
uncompromising vision of AV Dicey in which all legal authority proceeds from an
Austinian sovereign.23 The Courts do no more than give effect to the will of that
sovereign. All aspects of public law are to be seen as merely fulfilling a completely
articulated set of rules already provided by the Parliament. The Courts are not
involved in the creation of law at all; they are instead merely its spokesmen.

20 (2010) 241 CLR 252 at 258-259 [12]-[13]

21 For procedural fairness, see Re Refugee Tribunal; ex parte Aala (2000) 204 CLR 82 at 89 [5] per
Gleeson CJ, at 101 [41] per Gaudron and Gummow JJ, at 135 [142] per Kirby J, at 153 [210] per
Callinan J; for relevant/irrelevant considerations see Craig v South Australia (1995) 184 CLR 163 at
179-180 per Brennan, Deane, Toohey, Gaudron and McHugh JJ. See also Justice Gilmour, Kirk:
Newtons apple fell (Speech delivered at the 2010 Conference of the Samuel Griffith Society, Perth, 29
August 2010) < http://www.fedcourt.gov.au/aboutct/judges_papers/speeches_gilmourj1.html>.
22 Re Refugee Tribunal; ex parte Aala (2000) 204 CLR 82
23 AV Dicey, Introduction to the Study of the Law of the Constitution (8th Ed, Macmillan, 1915), 3-4.
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Problems with this probably include the fact that it does not accord with legal history
the rules with which we are concerned were generated over several centuries by the
Courts as an exercise of their own authority and not as aspects of statutory
interpretation. The theorys denial of legislative competence in the Courts is
inconsistent with the existence of the common law.

The second issue concerns the uneasy relationship between Parliament, judicial
review and the common law. The statements of the High Court exhibit a marked
inconsistency about this. In Saeed five Justices of the Court approved a statement of
Brennan J in Kioa v West which contained these two sentences:24

the justice of the common law will supply the omission of the
legislature. The true intention of the legislation is thus ascertained.

If one reads this carefully one will see that it is internally inconsistent. The first
sentence appears to accept that the rules of procedural fairness arise from the common
law but that they are somehow incorporated into the statute because the text of the
statute is silent. The second sentence says the opposite the rules are revealed to be
Parliamentary rules. But if that be so, one may ask what the omission of the
legislature referred to in the first sentence is. Statements of this kind reveal, I think, a
deep conflict about what is taking place.

That deep conflict proceeds from the need under the present view to import the rules
of judicial review as part of the instructions emanating from the statute (which in turn
gives rise to the view that the grounds of judicial review are concerned with
jurisdictional error). Under the former principle in Coco the source of the rules was
the common law and the statute was simply interpreted as not interfering with those
rights without clear language. The task of statutory interpretation was a simple one
which involved reading down general language. It also assumed that the rights were
generated by judge-made law. It was a view which sought to accommodate the
interaction of two sets of legal principles derived from different sources.

24 (1985) 159 CLR 550 at 609

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Under the view in Saeed, what is involved is not so much reading down general
language so as not to interfere with rights existing outside the statute. Rather what
must be involved is reading into the statute itself the rights which are not to be
affected. This involves a considerable conceptual leap and, as a process of
construction, a move away from a traditional process of reading down to a radical
process of reading in.

These are very different processes of statutory interpretation but Electrolux and Saeed
treat them as if they were the same. It matters because the question of reading words
into a statute is itself the subject of its own developed, if not entirely uncontroversial,
jurisprudence. Ordinarily we are told that it is the text of a statute which controls and
that Parliamentary intention is a useful aid to interpretation of the text. In interpreting
a statute the aim is to see what is the intention expressed by the words used. 25 In
Saeed itself the same five Justices26 adopted what had been said by Gummow J in Wik
Peoples v Queensland27 to conclude that it was necessary to keep in mind that when
it is said the legislative intention is to be ascertained, what is involved is the
intention manifested by the legislation (emphasis in Saeed).

In the case of Electrolux and Saeed, however, Parliamentary intention is ascertained

not from what the text says but from what it does not say. We should recognise this
for the remarkable leap that it is.

Is this permissible? Under existing principle, words may be inserted into an Act in
some situations. A comprehensive explanation of those principles is beyond the scope
of this paper. It seems that it can occur, however, in certain circumstances. The High
Court, for example, departed from the literal wording of a statute in Cooper Brookes
(Wollongong) Pty Ltd v Federal Commissioner of Taxation28 where it was plain that an
error had crept into the drafting. The most comprehensive explanation of the current
doctrine appears in the remarks of Spigelman CJ in R v Young.29 The prevailing view

25 River Wear Commissioners v Adamson [1877] 2 AC 743 at 763.

26 241 CLR 252 at 264 [31].
27 (1996) 187 CLR 1 at 168-169.
28 (1981) 147 CLR 297
29 (1999) 46 NSWLR 681 at 686-688
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is that one may (but need not necessarily) read into a statute words which have been
omitted by the legislature if three pre-conditions are satisfied:

firstly, one must know the mischief to which the legislation was directed;
secondly, one must be satisfied that there has been inadvertence by the
legislature in overlooking an eventuality which must be dealt with if the
purpose of the legislation is to be achieved; and,
finally, one must know with certainty the words which Parliament would
have used.

It may well be possible to deduce from the principle of legality that the first of these
requirements is satisfied. One could say, in light of the principle, that Parliament
intended as one of its aims to provide a statute which provided for judicial review.
With some modification one could even say the second principle was satisfied:
perhaps the legislature did not so much overlook the matter but instead simply
assumed that it did not need to be dealt with. The real difficulties emerge, however,
with the third requirement. If it be the test, then one needs to be quite certain what the
rules of judicial review are one needs to be able to write them down with clarity and
to say what they are before they can be read in.

In the case of the principles of judicial review this is a task which has eluded four
centuries of public lawyers. It is unrealistic to expect that the entire text of the rules
of judicial review can be written down and simply read into a statute. If it could,
everyone in this room would be out of a job. There is a more serious problem,
however. If what is involved is implication from the statute itself the meaning of the
principles of judicial review must be fixed and known at the time the statute is passed
and neither its meaning, nor those principles, may later alter for the meaning of a
statute does not alter with the passage of time. This has serious consequences for the
development of judicial review. If at some later time a new principle of judicial
review is discovered say, for example, a doctrine of irrationality it cannot be taken
to form part of a statutory text which antedates the time of the new principles
discovery. Taking the logic of the position to its extremes, one might well have
different principles of judicial review for statutes passed at different times.
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That problem could be surmounted only if one permits that what is implied from the
statute is not a fixed set of principles at a particular time but instead an instruction to
apply whatever the judges say constitutes, at any particular moment, the principles of
judicial review. That solution would indeed overcome the problem arising from the
fact that the meaning of a statute is generally fixed at the time of its passage but only
at the price of accepting that what was occurring was the giving of legislative effect to
judge-made rules. Unfortunately, the Court cannot commit itself to that principle
because we have been told that it is beyond the power of the Parliament to give effect
to the common law. Such a step would involve the invalid conferral of legislative
authority on the Courts: see Western Australia v Commonwealth (Native Title Act
Case).30

There is no ready answer to this problem. At this point an interlocutor might well
interrupt and say Well this all very interesting, but does it ever matter? The answer is
that it matters a lot.

Section II

The theory that decisions made in excess of jurisdiction are invalid generate a suite of
problems which have been known about and counselled against for a long time.
There is nothing especially new in the problems I am going to list. Professor Craig
has given a full account of them and before him Professor Wade. The problems are:

(a) the inability to take into account in determining whether jurisdictional error is
present the seriousness of the breach of the rules which have occurred;

(b) the incoherence of discretionary refusal of relief and the void/voidable

distinction;

(c) the inability to explain aspects of the writ of certiorari and, in particular, the
fact that it may be granted in the cases of non-jurisdictional error of law; and

30 (1995) 183 CLR 373 at 485-486 per Mason CJ, Brennan, Deane, Toohey, Gaudron and McHugh JJ.
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(d) the inability to explain the basis of review of non-statutory exercises of
government power. Here I have in mind not only exercises of executive power
but also the growing modern trend of creating, through the imposition of
licensing schemes, governmental decisions which do not have a sufficient
statutory basis to make reasoning based on jurisdictional error plausible.

If I might deal with these in turn.

(a)Inability to take account of the seriousness of the breach in determining whether a

jurisdictional error has occurred

If one subscribes to the Project Blue Sky view that one is to determine whether
Parliament intended that infringement of the statutory requirement should result in
invalidity there is logically no room for asking how serious that breach is. The law is
either construed as allowing the provision to be breached without consequent
invalidity or it is not. There is no room on that view of things for a middle course of
asking whether Parliament might have intended different outcomes depending on how
serious the breach was. If one wanted to put it in slightly different terms, there is no
administrative law equivalent to what contract law calls an intermediate term where
one has to wait and see how serious the breach of the term is before deciding whether
a right of termination arises.

Yet this is simply not what cases say. In Minister for Aboriginal Affairs v Peko-
Wallsend Ltd31 Mason CJ explained, in a passage which has been repeatedly applied,
that not every consideration that a decision-maker is bound to take into account but
fails to take into account will justify the court setting aside the impugned decision and
ordering that the discretion be re-exercised according to law. A factor might be so
insignificant that the failure to take it into account could not have materially affected
the decision. Now this passage predates the discovery that the grounds of review are
all jurisdictional errors and it uses language which suggests that it is the Court which
is setting the decision aside rather than merely discovering that the decision was
already invalid. But it is accepted doctrine. The only way it may be incorporated into

31 (1986) 162 CLR 24 at 40

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the view that one must discern whether Parliament intended that the breach should
result in invalidity is to accept that the Project Blue Sky inquiry requires one to work
out what Parliament would have done in any particular case.

Occasionally, this has occurred. In Nature Conservation Council of New South Wales
v Minister Administering the Water Management Act 2000,32 the Minister had been
empowered to formulate water management plans. The Act required the plan to have
environmental water rules which were defined in a rather complex way. As a matter
of text, the New South Wales Court of Appeal concluded that the Ministers plan did
not include environmental water rules. However, it went on to conclude that as matter
of substance it did and that Parliament could not have intended that a plan which, in
substance, met the environmental objectives of the Act should be invalid. 33
Spigelman CJ accepted that the statute pointed to invalidity but said:34

On balance these textual indications would support a conclusion of

invalidity. It is, however, my opinion that the factual context of the
water source, rather than the textual context of the legislative scheme,
is determinative in the present case.

This is a remarkable extension of Project Blue Sky. As Gummow J observed upon the
successful special leave application Yes, Mr Hutley. There does seem to be a
problem about Project Blue Sky.35 The appeal was subsequently settled.36 It is
understandable, I think, why the Court of Appeal was tempted down this course. It
allows one to assess how serious the breach of the statute was which might seem quite
sensible. Within the rubric, however, of Project Blue Sky this can only make sense if
one is prepared to seek to divine what the intention of Parliament was in relation to
the particular case before the Court. Even for the most diehard proponents of the
present theory, this is too much.

32 [2005] NSWCA 9
33 Ibid at [95].
34 Ibid at [93].
35 Nature Conservation Council v Minister Administering Water Management Act [2005] HCATrans
668.
36 Nature Conservation Council v Minister Administering Water Management Act [2005] HCATrans
1004.
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After this paper was delivered Neil Williams SC and Katrina Stern were kind enough
to draw to my attention the High Courts decision in Minister for Immigration v
SZIZO.37 In that case, the Act required notice of a hearing before the Refugee
Tribunal to be given to the applicants authorized representative within a specified
time (ss 425A and 441G). There was no question that the applicants were, in fact,
notified of the hearing within that time but it was accepted that it had not been given
to the authorized representative. The Act also imposed on the Tribunal substantive
obligations akin to the hearing rule which required adverse information to be brought
to the applicants attention and for them to appear to give evidence and present
argument (ss 424A and 425). The Court declined relief on the basis that there had
been no denial of natural justice. The reasons of the Court are ambiguous. They may
be read to mean that breaches of ss 425A and 441G did not generate jurisdictional
error and there had been no breach of ss 424A and 425 (which if breached would have
generated such an error). They may also be read to mean that some form of intensity
review was intended. The critical paragraphs are [34] and [35]:

[34]In combination, ss 425A and 441G ensure that an applicant for

review receives timely and effective notice of the hearing.
They impose obligations which facilitate the conduct of a
procedurally fair hearing. However, the manner of providing
timely and effective notice of hearing is not an end in itself.
The procedural steps dealing with the manner of giving notice
are to be distinguished from other components of the statutory
statement of the hearing rule, including the obligation to give
particulars of adverse information [Section 424A(1)] and to
invite the applicant to appear to give evidence and to present
arguments relating to the issues arising in the decision under
review [Section 425].

[35] While the legislature may be taken to have intended that

compliance with the steps in ss 441G and 441A would
discharge the Tribunal's obligations with respect to the giving
of timely and effective notice of the hearing, it does not follow
that it was the intention that any departure from those steps
would result in invalidity without consideration of the extent
and consequences of the departure. The respondents
acknowledge that they suffered no injustice by reason of the
Tribunal's omission and they do not take issue with the Full
Court's characterisation of the result in the circumstances as
being "rather absurd" . The admitted absurdity of the outcome

37 (2009) 238 CLR 267

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 is against acceptance of the conclusion that the legislature
intended that invalidity be the consequence of departure from
any of the procedural steps leading up to the hearing [SZIZO v
Minister for Immigration and Citizenship (2008) 172 FCR 152
at 167 [87]]. In a case in which the Tribunal fails to comply
with the requirements for the giving of notice of a hearing, the
factual determination of whether the applicant for review and
his or her authorised recipient received timely and effective
notice of the hearing does not require the court to consider how
the applicant might have presented his or her case differently
had the Tribunal complied with the statutory procedures. No
question arises, in the case of an applicant who has received
timely and effective notice of the hearing, of the loss of an
opportunity to advance his or her case.

I think the former reading is the better one (especially in light of the emphasised
sentence in [35]). It remains nevertheless a good example of the gymnastics required
to bring about commonsense outcomes in this area.

One sees the same yearning to consider how serious the breach of the rules is in that
discordant collection of authorities dealing with whether trivial breaches of the rules
of procedural fairness should result in the setting aside of a decision: see, for example,
Stead v State Government Insurance Commission.38 Often enough the ingenious
solution to this unyielding aspect of Project Blue Sky is accept that the jurisdictional
error has been shown but then to decline relief on discretionary bases. But this gives
rise to its own difficulties to which I now turn:

(b) Discretionary withholding of relief and the void/voidable distinction

One must approach this question with the clear understanding of what Project Blue
Sky requires. One asks whether the Parliament intended that a breach of its
requirements should result in invalidity and if that receives an affirmative response
one concludes that the decision is of no effect and is no decision at all. In so doing,
one is obeying only that which the Parliament itself has commanded.

It is nevertheless accepted that the grant of the constitutional writs (as they are now
called) is discretionary. Even where jurisdictional error is established the Court may

38 (1986) 161 CLR 141

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decline to set a decision aside. There are at least two problems with this and both are
concerned with coherence.

The first focuses on the doctrines apparent loyalty to the will of Parliament. By the
time the question of discretionary withholding of relief arises, the Court has already
determined there is a jurisdictional error and therefore that Parliament intended the
particular decision to be invalid. This is what Project Blue Sky says. The Court, on
this view of things, has not decided that the decision should be set aside rather it has
discovered that Parliament never intended that such a decision should be valid. But if
one has accepted that Parliament intended decisions of that kind to be invalid how can
one, in the same breath, conclude that a court can decline relief? By refusing to set
aside the decision one is giving effect to the very thing which one has just concluded
Parliament has said must not be given effect. This makes no sense; it is internally
inconsistent.

A second aspect of incoherence emerges when one inquires from where it might be
that an invalid decision which is not to be set aside derives its lawful effect. Plainly, it
does not derive it from the statute Project Blue Sky supplies that answer. But if not
the Parliament, from where else might its legality be derived? The present theory
simply provides no answer to this.

When these problems arise retreat is usually beaten to the dichotomy between void
and voidable decisions. As I will try to show later, the only coherent theory is one in
which all decisions are accepted to be valid and then subsequently set aside when
judicial review grounds are established. But that is not the law at the moment. In
Minister for Immigration and Multicultural Affairs v Bhardwaj,39 the Court was
divided on whether administrative action resulting from jurisdictional error was
without legal effect. But Gaudron and Gummow JJ (with whom McHugh J agreed)
did say that [t]here is, in our view, no reason in principle why the general law should
treat administrative decisions involving jurisdictional error as binding or having legal
effect unless and until set aside. A decision that involves jurisdictional error is a
decision that lacks legal foundation and is properly regarded, in law, as no decision at

39 (2002) 209 CLR 597

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all.40 It was this precise passage was picked up and later applied by five Justices in
Plaintiff S157/2002 v Commonwealth.41 Interestingly, one of those five Hayne J
had expressed the opinion in Bhardwaj itself that administrative action was, in a
meaningful sense, but voidable.42

I side with those, such as Professor Aronson, who say that this cannot really be a true
description of judicial practice. The reasoning in Project Blue Sky and S157 affords
no halfway house in which the legislature has granted to a decision defeasible validity
until challenged. I agree that, in practical terms, the rules of standing and the ability
of a court to refuse relief on discretionary grounds result in an operation of the present
theory which appears to create a situation where decisions are, in fact, treated as valid.
But the point to be made is that that is an outcome which is not brought about by the
reasoning in Project Blue Sky. To the contrary, it is an outcome in defiance of the
principles there expounded. The fact that rules of standing and the ability of a court to
withhold relief on discretionary grounds have the political consequence that
administrative action is voidable is the strongest reason we have to believe that the
statements in Project Blue Sky and S157 cannot possibly be correct statements of
theory. They simply do not match the observable facts about judicial review.

There are other matters of everyday practice which contradict the theory, too.

(c) the availability of certiorari in cases of non-jurisdictional error of law patent on

the face of the record and in cases where governmental power is being exercised
without a statutory basis

The Project Blue Sky approach neatly locates judicial review as the search for
jurisdictional error. It does this for doctrinal reasons associated with Diceys views
about the supremacy of Parliament. On this view of things, if a decision is authorised
by statute then no common law, or judge-made rule, may justify is annulment. To do
so would be to contradict the will of Parliament itself for what Parliament has

40 Ibid at 614 [51]

41 (2003) 211 CLR 476 at 506 [76]
42 (2002) 209 CLR 597 at [144].
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authorised no judge may set aside. The Project Blue Sky/S157 view purports to accept
this orthodoxy but then seeks evade it by reimagining the whole of administrative law
as an outcrop of statutory interpretation. I have outlined already the internal logical
difficulties this entails.

But there are not just problems of internal logic. There are external problems, too, of
reconciling what the theory predicts about the behaviour of judges and what, in
practice, judges do. The previous matter I touched upon the necessity of the theory
to predict that decisions are void rather than voidable but the fact that relief may
nevertheless be refused on discretionary grounds is an example of the empirical
poverty of the Project Blue Sky approach. There are other such problems. The ultra
vires view predicts that at least two grounds of review do not exist when, in fact, they
do.

The first, which will be well-known to you, concerns the grant of certiorari for error
of law on the face of the record. This is a remedy which may be granted without the
demonstration of jurisdictional error. To be plain: the Court may conclude that the
decision was within jurisdiction but nevertheless set it aside. There is no way this
principle can be integrated with notions of jurisdictional error or with the view that
Courts may not set aside that which Parliament has authorised. Worse still, it
demonstrates that the Courts do exercise a power to set aside decisions which are, ex
hypothesi, authorised by statute thereby directly contradicting the Diceyan view of the
role of Parliament. The existence of certiorari for non-jurisdictional error is an
empirical fact which needs to be explained. It is not explained by asserting that all
power in respect of administrative decision-making is located in Parliament.

The High Courts response to the existence of this anomaly has not been to revisit
whether judicial review rests on issues of jurisdiction and Parliamentary intent.
Instead, it has been to confine the anomaly. This was the inevitable result of the
holding in Craig v South Australia that the record did not include the reasons given
for the decision.43 I do not doubt that there was historical pedigree for that
proposition but it was surely a surprising outcome towards the end of the twentieth

43 (1995) 184 CLR 163

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century. The real reasons for it lie, I venture to suggest, in a hostility to allowing there
to exist a procedure by which common law courts might set aside decisions otherwise
authorised by statute.

The more recent role of this remedy has been to serve as the lynchpin in Kirk v
Industrial Court of NSW.44 Six Justices said [t]he continued vitality of the principle
that certiorari for error of law on the face of the record may seem incongruous. 45 But
this was not so. Their Honours saw for it a very important role indeed. Having
discovered that review for jurisdictional error was an inviolable function of State
Supreme Courts, the question arose as to what was to be made of the large number of
judicial statements to the effect that State Parliaments could enact valid no certiorari
clauses. The answer the Court provided was that these cases were concerned with
certiorari for error of law patent on the face of the record and not with certiorari for
jurisdictional error.46 The emasculated remedy of Craig was called back, for its final
bow, to take the fall for no certiorari clauses.

In my opinion, this reasoning is unconvincing. It rests, with respect, on the

proposition that the mere reference to the Supreme Courts of the States in s 73 of the
Constitution carries with it not only the idea that such a Court must exist but that such
a court must possess the power to review for jurisdictional error. The objections to
this are legion. It may be that the Supreme Courts cannot be abolished and that their
existence is guaranteed by their presence in s 73 (although I doubt this is truly
necessary). But if one is to reason that way, one needs to account for the reference in
s 73 to the Inter-State Commission, the resoundingly ontological words of s 101
(There shall be an Inter-State Commission) and the fact that the Inter-State
Commission most assuredly does not exist. One might have thought that, where the
Constitution requires that the bodies referred to in s 73 exist, it has used express
language of the kind in s 101. But one does need to reach a concluded view about
that.

44 (2010) 239 CLR 531.

45 Ibid at 573 [79] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ.
46 Ibid at 581 [100]
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What is much more remarkable is the reasoning that merely by s 73s reference to the
Supreme Courts that there emerges a constitutional guarantee that a Supreme Court
has supervisory jurisdiction for jurisdictional error. This is an example of what David
Jackson has referred to as a structural implication.47 Examples of structural
implications include the separation of powers arising from the fact that the legislative,
executive and judicial powers are dealt with in separate chapters of the Constitution
(I, II and III), the continued existence and functioning of the States (Melbourne
Corporation)48 and, perhaps, the maintenance and existence of the rule of law (The
Communist Party Case).49 The Courts rationale in Kirk was that, if Supreme Courts
did not have a supervisory jurisdiction over jurisdictional error, this would create
islands of power immune from supervision and restraint 50 and this would ultimately
interfere with the superintendence of [the High Court] as the Federal Supreme
Court in which s 71 of the Constitution vests the judicial power of the
Commonwealth.51

This makes no sense, however. The role given to the High Court by s 73 is as the
ultimate appellate court for the States and the Commonwealth. That role, as it has
frequently been explained, is about achieving a single common law for Australia. 52 It
is not necessary that, for an ultimate appellate court to discharge its function of
supervising the courts below it, those courts should in turn have guaranteed
jurisdictions. Section 73 says nothing, in terms, or by way of necessary implication,
about jurisdictional excess by the executive decision-makers of the States.

It is beyond the scope of this paper to point out the other difficulties with Kirk (for
example, erecting in effect a separation of powers at the level of the States without
overruling a line of cases denying there was any such principle); or, proceeding on an
arguably selective reading of what the cases at the turn of the nineteenth century said
about the authority of superior courts in prerogative relief cases). For present

47 DF Jackson QC, The Implications of the Constitution in Perram and Pepper (Eds), The Byers
Lectures: 2000-2012 (Federation Press) at 114-115.
48 Melbourne Corporation v Commonwealth (1947) 74 CLR 31.
49 Australian Communist Party v Commonwealth (1951) 83 CLR 1.
50 (2010) 239 CLR 531 at 581 [99].
51 (2010) 239 CLR 531 at 581 [98].
52 See, for example, Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 563.
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purposes it suffices to note only the striking proposition that the relevance of
certiorari for error of law patent on the face of the record is to explain why no
certiorari clauses are valid. This is reasoning which, in my opinion, should be
rejected.

Despite all of that, the remedy continues to exist. It does not sit easily, or perhaps at
all, with the approach in Project Blue Sky.

Another difficulty for the Project Blue Sky approach concerns those cases where
judicial review is exercised over decisions which have no direct statutory basis. There
are two kinds. The first concerns the executive power. The second concerns a
growing modern tendency to create decision-makers with government functions other
than through the means of statute.

As to the first, it has long been accepted that some exercise of prerogative power of an
administrative nature are judicially reviewable. In the UK this was established in
GCHQ53 and in this country by Re Toohey; ex parte Northern Land Council;54 FAI
Insurances Ltd v Winneke;55 and South Australia v OShea.56 On their face these
decisions cannot be explained by resort to jurisdictional error unless they are seen as
statements about statutory powers.

More recently, however, it has been said that at least at the federal level the scope of
the executive power is a question of the proper construction of s 61 of the
Constitution and, in particular, the words executive power. 57 That opens the
doorway to putting judicial review of executive action on a jurisdictional error basis.
The problem is that the doorway is difficult to get through gracefully. Under the
current doctrine of the Court, the principles of judicial review are implications from a
statute, a corollary of the principle of legality. In order to put judicial review of
executive power on the same basis it would be necessary to say that the same

53 Council of Civil Service Unions v Minister for Civil Service [1985] AC 374
54 (1981) 151 CLR 170.
55 (1982) 151 CLR 342.
56 (1987) 163 CLR 378.
57 Williams v Commonwealth [2012] HCA 23.
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principles are implications from the Constitution itself but this, so far as I am aware,
is not something anyone has yet suggested.

Further, if it really could be inferred from the Constitution that executive decisions
were to be made in accordance with ordinary principles of judicial review, then it
would not really be necessary to the say that those same principles arose in cases
involving statutes as a matter statutory implication. To put the matter another way, if
Chapter II contains an implicit set of judicial review principles (no doubt amenable to
statutory alteration like the executive power more generally), why would they not
apply to action authorised by statute (unless the statute otherwise provides)?

Quite apart from reasoning based on s 61, of course, there remains a difficulty in
explaining how State executive power is to be judicially reviewed if the doctrine is
based in jurisdictional error. No resort to s 61 or any equivalent is there available. It
would seem that what must occur is the direct application of GCHQ, that is, judicial
review without jurisdictional error in the Project Blue Sky sense.

There other kinds of decision which lack a statutory basis and judicial review of
which may be difficult to explain on the basis of jurisdictional error. In R v Panel on
Take-overs and Mergers; ex parte Datafin Plc,58 the Court of Appeal for England and
Wales held that the Take-overs Panel, although a private body, was amendable to
judicial review because it was exercising public law functions. 59 This decision
cannot be explained if one accepts that judicial review is an aspect of statutory
interpretation. Unsurprisingly one finds considerable reluctance in this country to
apply it. Apart from Kirby J in NEAT Domestic60 and Breckler,61 the High Court has
yet to refer to it. Basten JA recently very thoroughly traced the status of Datafin in
Chase Oyster Bar and concluded62 that it was not necessary to determine whether
Datafin was part of Australian law (since he concluded in that case that a statutory
function was being performed). But he did think that nothing said in the High Court

58 [1987] QB 815
59 Ibid at 836.
60 NEAT Domestic Trading Pty Ltd v AWB Ltd (2003) 216 CLR 277 at 313 [112], 314 [115], 315 [119]
61 Attorney-General (Cth) v Breckler (1999) 197 CLR 83 at 127 [fn. 198]
62 (2010) 78 NSLWR 393 at [81].
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required its application and statements of general principle in that Court might be
thought to adopt a more limited scope for the operation of public law remedies. With
respect I agree. The whole tenor of Australian public law is away from any notion
that judicial review can exist other than through jurisdictional error.

But this will lead to a serious lacuna. There are a number of regulatory schemes in
this country in which a regulator imposes a licence condition upon a class of person
which requires the licence holder to belong to an external complaint resolution body
and to abide by that bodys arbitral decisions. Lord Hoffman referred to these kinds
of situation as involving the privatisation of the business of government itself. 63
There are first instance decisions in this country which have held that such exercises
of power are judicially reviewable. Matthews J accepted that the Advertising
Standards Board was exercising governmental functions and was judicially
reviewable in Typing Centre of New South Wales v Toose 64 and Ryan J did the same in
Dorf Industries Pty Ltd v Toose.65 Campbell J thought that this was an open view in
McLelland v Burning Palms Surf Live Saving Club 66. I doubt whether these
statements can survive what Basten JA has said in Chase Oyster Bar. But assuming
that to be correct, it means that there will now exist the potential for regulators to
create dispute resolution schemes through the imposition of licence conditions
requiring both membership of the scheme and adherence to its decisions without the
possibility of judicial review. It is striking that in such cases were the government to
make the decision itself it would be judicially reviewable but by moving it out to
private contractors this can be circumvented. Those who have followed the cases
concerned with the offshore processing regime may notice certain resonances.

The consequences seems to me that the prevailing view does not adequately explain
judicial review of executive action and it either does not explain how privately
reached governmental decisions may be reviewed or, worse, it denies that they can.
Neither outcome is satisfactory.

63 R v Disciplinary Committee of Jockey Club; ex parte Aga Khan [1993] 1 WLR 909 at 931
64 (Unreported, Supreme Court of New South Wales, 15 December 1988)
65 (1994) 54 FCR 350.
66 (2002) 191 ALR 759; [2002] NSWSC 470 at 758-759 [115]-[117]. See also Masu Financial
Management v Wong (No.2) [2004] NSWSCA 829 per Shaw J.
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III. The need for a different approach

Having set out some of the difficulties flowing from Project Blue Sky and the concept
of jurisdictional error, may I suggest a different way of looking at matters. In that
regard, it is useful to begin with six facts about the actual the practises of judges.
These are:

(i) the Courts regularly decline relief even where jurisdictional error is
established. In practice, whatever may be said in S157, administrative action is
in practise voidable, not void;
(ii) the Courts do not merely declare that decisions are invalid (as S157 might
suggest) but instead actively set them aside. If the decisions were truly invalid
there would be nothing to set aside;
(iii) the rules governing judicial review are created by the judiciary and applied by
it;
(iv) the judiciary does review the executive power on judicial review grounds and
either does, or ought to be able, to review non-statutory decisions having a
governmental aspect to them;
(v) the Courts can and do set aside decisions by certiorari which are authorised by
statute even when they are within jurisdiction. They do so when there is a
non-jurisdictional error of law patent on the face of the record. The fact
therefore that Parliament has authorised an official to make a decision does
not, in practice, exclude the ability of the courts to review it; and
(vi) Ouster clauses are ineffective to prevent judicial review.

I have not included any statements about doctrine in these facts. They are intended
only as claims about observable facts. I emphasise the facts as being observable
because one ought to keep in mind Sir Karl Poppers advice that theories are not right
or wrong but instead are simply better or worse at explaining the observable
evidence.67

67 The Logic of Scientific Discovery.

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The theory inherent in Project Blue Sky does not coherently explain facts (i)-(iv) at
all. It predicts that decisions are void when they are in fact voidable. It cannot
explain why the Courts set aside decisions when, if the theory be correct, there is
nothing to set aside and a declaration should suffice. It is forced to say that the author
of the principles of judicial review is the Parliament when it is demonstrably the
Courts. It cannot explain how the rules of judicial review can evolve over time but
must accept instead that the principles which apply to any particular statute are those
which exist at the time of its passage. Any attempt to outflank that problem involves
giving statutory effect to the common law which the Court has previously explained
infringes the separation of powers.68 The doctrine either cannot explain, or denies the
existence of, judicial review of non-statutory governmental decisions.

On the other hand, to give credit where credit is due, the doctrine does give an
explanation for the last two facts. Certiorari for error of law on the face of the record
exists as a foil to certiorari for jurisdictional error explaining why privative clauses
have previously been held to be valid.69 This important jurisprudential purpose for
that species of certiorari is to be contrasted, however, with the doctrines practical
emasculation by its confinement to those cases where the error of law can be found on
the face of a record which we are told does not include the actual reasons articulated
for the decisions making.70

The point of that reasoning is to provide the basis for the fifth observation: here we
see that ouster clauses are not effective because all the grounds of judicial review
have turned out to involve jurisdictional error and against that kind of error ouster
clauses are impotent.71

My suggestion to you is that the failure to fit the first four facts and the artificial
reasoning inherent in the explanations for the last two are powerful indicators that this
is a theory which is wrong. It does not describe the reality of actual judicial practice

68 Native Title Act Case (1995) 183 CLR 373 at 485-486 per Mason CJ, Brennan, Deane, Toohey,
Gaudron and McHugh JJ.
69 Kirk v Industrial Court of NSW (2010) 239 CLR 531
70 Craig v South Australia (1995) 184 CLR 163.
71 Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
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and it is internally inconsistent. Its sole redeeming feature is that it does provide an
explanation for the ineffective nature of ouster clauses.

What would be a better theory? Clearly it would have to explain the six matters
above. I would propose the following (as others such as Paul Craig have done
previously):

(a) the author of administrative action is the executive arm of government or those
doing the executive arm of governments business for it (delegates, if you
will);
(b) the executive may make those decisions within its own competence (that is,
under what were formerly known as prerogative powers) or under functions
given to it by Parliament or its delegates;
(c) in making administrative decisions the executive or its delegates are
constrained by two distinct bodies of law with different sources, the common
law and statute. The principles of judicial review are part of the common law;
(d) the relationship between the common law and statute is well understood. The
law of the judges exists as a distinct body of law deriving from the operation
of the doctrine of precedent in circumstances where the Parliament has not yet
spoken. It is not statutory in origin. But the Parliament is at liberty at any
time to override the rules of the common law if it chooses by the use of clear
and unambiguous language;
(e) the fact that a function is conferred by Parliament on the executive does not
entail that the common law principles of judicial review have been ousted. As
the existence of certiorari for error of law patent on the face of the record
shows, the power of the courts to set aside decisions is not thwarted because
the function in question is statutory in origin;
(f) it is for the Courts to decide whether any particular administrative decision is
lawful, that is, to determine whether it infringes either the common law or any
statutory requirement;
(g) if a Court concludes that a decision has contravened a relevant legal principle,
whether statutory or deriving from the common law, the Court may, but need
not, set the decision aside. That will involve the exercise of a discretion; and
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(h) until the decision is set aside it remains for all purposes valid.

This theory explains all the factual matters that I have previously set out but not the
status of ouster clauses. Such clauses require additional explanation. Jeremy Kirk has
expressed the view that the Courts learning on this topic took a wrong turn in
Hickman72 and that the position should simply be that privative clauses are invalid. 73
In my respectful opinion he is correct. If one accepts that it is the role of the judiciary
to decide what is lawful and what is not74 that function would be altogether pointless
if it was not also accompanied by an ability to say what the consequences of the fact
that the conduct was unlawful were to be. If it be accepted that an indispensable
aspect of the judicial power is to declare the consequences of unlawful governmental
action, it is very difficult to see how Parliament may intrude upon that function by
seeking to pre-empt what the outcome of the Courts eventual inquiry should be. Just
as we deny any role to the Parliament in findings of guilt 75 so too we ought to affirm
that ouster clauses involve an impermissible exercise of judicial power. If one accepts
that, the simple answer to the private clause problem is the one that Kirk suggests,
namely, that privative clauses are invalid.

If one alights upon that solution then the theory expounded above explains the
empirical evidence about how Courts are actually behaving and provides, I hope, a
tidy answer to the problem of ouster clauses. It also has the virtue of allowing a Court
to consider, in deciding whether to set aside a decision which is unlawful, how serious
the breach of the law is together with other factors which do not turn purely on the
text of the statute. This is a significant improvement on the current doctrine which
secretes such considerations in the interstices of discretionary refusal of relief. Such a
view, if adopted, would allow explicit reasoning on why particular unlawful decisions
are to be set aside and others left in place. We would have no further need of
bewildering and unpredictable lists of jurisdictional errors such as those usefully

72 Hickman v Federal Commissioner of Taxation (1922) 31 CLR 232.

73 Kirk, J, The Entrenched Minimum Provision of Judicial Review (2004) 12 Australian Journal of
Administrative Law 64 at 65; Kirk, J, The Concept of Jurisdictional Error (seminar delivered to the
Constitutional and Administrative Law Section of the NSW Bar, 30 May 2012).
74 cf. Marbury v Madison (1803) 5 US 137 at 177 [i]t is emphatically the province and duty of the
judicial department to say what the law is.
75 cf. Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1.
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compiled by Professor Aronson. No doubt, in that jurisprudence the text of the statute
- including its scope, ambit and purpose - would be very important inputs but there is
no reason to think that they would be, as they are now, the sole inputs.

An inevitable feature of that theory is that there is no role in it for invalid

administrative action. This is no great loss. Hans Kelsen explained in his Pure
Theory of Law that a legal order cannot contain decisions which were truly invalid. 76
The reason for this was that such a question could only arise within the legal system
itself before a body which was in fact authorised to decide that question. That there
was a body authorised to decide whether the decision was valid (and with it the
possible outcome that the decision was valid) contradicted the ability of the decision
truly to be wholly without legal effect. It has at least the legal effect of being the
decision that the court was being asked to consider. That the legal system could ask
itself whether a decision was invalid showed that it could not truly be wholly invalid.
Kelsen put it this way:77

In this respect, the law is like King Midas: just as everything he

touched turned to gold, so everything to which the law refers assumes
legal character. Within the legal order, nullity is only the highest
degree of annullability.

Hayne J made much the same point in Bhardwaj when he pointed out that the view
that invalid action was wholly void was at a loss to explain how such a decision might
be appealed or subject to judicial review.78 In Bhardwaj he accepted that decision
would be valid and effective in law unless and until it is retrospectively invalidated
(i.e. declared void) by a court.79 Much the same reasoning may also be seen at
work in decisions such as Calvin v Carr.80 It is difficult to integrate those statements
into the extreme doctrine now annunciated in S157. It is even more difficult to
explain, on the Project Blue Sky view of the world, where this defeasible validity
comes from. It cannot come from the Parliament and it does not come from the
courts.

76 (at pp 276-278)
77 Ibid at 278.
78 (2002) 209 CLR 597 at [101].
79 Ibid at [103].
80 [1980] AC 574.
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This is a difficult area which has largely been driven by the privative clause in the
Migration Act 1958 (Cth). For the reasons I have tried to explain above I do not think
the current learning of the High Court is, with respect, a coherent or accurate account
of administrative law. Despite the considerable array of authorities now supporting it
in this country, we should seriously consider whether we wish to persist with this
programme. In times past, there was a belief that the world was flat and that the sun
went around the earth. Gradually, observations were made which contradicted this:
the fact that the masts of ships disappeared over the horizon and the fact that it was
much simpler to explain the motion of the planets if one assumed that the sun was at
the centre of the solar system with the earth in orbit around it. I wonder whether our
public law and its commitment to the Diceyan view of Parliament as the source of all
principles of judicial review may not be due for a similar reconsideration.

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